‘Bail’ is derived from the old French verb ‘baillier’ meaning to ‘give or deliver. According to the legal language, bail refers to the assurance of the accused’s attendance that is required before releasing him pending trial or investigation. “Procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit himself/herself to the jurisdiction and judgment of the court” is what bail aims to accomplish.

The Criminal Procedure Code, 1973, does not define bail, although the terms bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as follows: ” Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence” Additionally, sections 436 to 450 outline the guidelines for the issuance of bonds and bail in criminal cases. The Cr.P.C. makes no mention of the amount of security that the accused must post to ensure his release. Therefore, the decision to cap the bond’s value is up to the judge.

Kinds of Bail:

1. Anticipatory bail (Section 438 Cr.P.c):

According to Article 21 of the Indian Constitution, everyone has the right to life and personal liberty, and it is regarded as one of the most valuable rights. Section 438 of the Criminal Procedure Code of 1973 contains a provision for anticipatory bail in Indian criminal law. The Law Commission of India emphasized the need to include a clause allowing the High Court and the Court of Sessions to give “anticipatory bail” in its 41st Report, which was published on September 24, 1969. This clause permits someone to apply for bail before being arrested on suspicion of committing an offense for which there is no possibility of bail. The fundamental rationale behind including this clause was to ensure that no one was imprisoned in any capacity before or unless they were found guilty.

Any person who has reason to believe that he may be arrested on suspicion of committing a crime for which there is no possibility of a bond may apply to the High Court or the Court of Session for an order under this section directing that, in the event of such arrest, the defendant be released on bail, and the court shall grant him anticipatory bail after taking into account the following factors:

1. The nature and gravity of the accusation.

2. The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence
3. The possibility of the applicant to flee from justice.
4. Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

Who is eligible to obtain anticipatory bail?

Any person has the right to petition the court of session or the high court under Section 438 of the code of criminal procedure for the grant of bail in the event of his arrest when they have reason to believe that they may be arrested on false or trumped up charges, or because they are at odds with someone, or they are concerned that a false case is likely to be made against them. The court may, if it sees fit, direct that in the event of such an arrest, he shall be released.

Hon’ble Court in State of M.P vs. Pradeep sharma (criminal Appeal No.2049 of 2013 dt.06-12-2013) held that “when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail”.

Conditions for obtaining the anticipatory bail:
The High Court or the court of the session may include such conditions in the light of the facts of the particular case, including:
1. A condition that the person shall make himself available for interrogation by the police officer as and when required;
2. A condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
3. A condition that the person shall not leave India without the previous permission of the court.

Hon’ble Supreme Court while dealing the case of Siddharam Satlingappa Mhetre (2011) 1 SCC 694 held certain conditions imposed by High Court to be not required & contrary to provisions of anticipatory bail. An accused is free on bail as long as the same is not cancelled. The High Court or Court of Session may direct that any person who has been released on bail to be arrested and commit him to custody on an application moved by the complainant or the prosecution

2. Bail After conviction: (Section 389 of the Cr.P.C)

A Two Judge Bench of the Supreme Court, in Atul Tripathi Vs. State of UP17 discussed the scope and ambit of Section 389 of Cr.P.C and issued the following Guidelines regarding the suspension of Sentence during the pendency of Criminal Appeal.
a. The appellate court, if inclined to consider the release of a convict sentenced to punishment for death or imprisonment for life or for a period of ten years or more, shall first give an opportunity to the public prosecutor to show cause in writing against such release.
b. On such opportunity being given, the State is required to file its objections, if any, in writing.
c. In case the public prosecutor does not file the objections in writing, the appellate court shall, in its order, specify that no objection had been filed despite the opportunity granted by the court.
d. The court shall judiciously consider all the relevant factors whether specified in the objections or not, like gravity of offence, nature of the crime, age, criminal antecedents of the convict, impact on public confidence in court, etc. before passing an order for release.

Section 389(3) is applicable only in the following conditions –

1. The Court must be the convicting Court
2. The accused must be convicted by the Court
3. The convict must be sentenced to imprisonment for a term not exceeding three years
4. The convict must express his intent to present appeal before the appellate Court
5. The convict must be on bail on the day of the judgment.

3. BAIL ON DEFAULT

Section 167(2) of the Criminal Procedure Code, 1973 empowers judicial magistrates to authorize custody of an accused person in cases wherein investigation cannot be completed in twenty-four hours. It provides for the maximum period ofcustody that can be authorized. It further contains a mandate that if the investigation is not completed within the stipulated maximum period, the accused is to be released on bail whatever may be the nature of accusation against him.

State of U.P. v. Laxmi Brahman, AIR 1983 SC 439 Section 167(2) deals with powers of the magistrate to detain the accused in custody and release him on bail on expiry of the statutory period. It is quite clear that power is conferred onthe magistrate to release the accused on bail under the proviso.

4. TEMPORARY/ INTERIM BAIL

There isn’t a specific legal clause allowing for interim or ad-interim bail. The High Court and the Sessions Court have the authority to release the accused on bail while they are in detention under Section 439 CrPC. Evidently, the court has the authority to release an accused person from detention on bail under Sections 436, 437, and 439. That is after an arrest. As was said before, the newly replaced Section 438 specifically calls for interim bail while the application for anticipatory bail is being decided. It’s a crucial clause since the accused could be arrested before the decision on his bail application is made. Additionally, it is consistent with the idea of the fundamental right to life and liberty as stated in Article 21 of the Indian Constitution. Interim bail may be granted when the court is satisfied that the object of the. However, this kind of bail may be granted at any stage of a case by way of court’s inherent power.

In Siddharam v State (2011) 1 SCC 694. court held that there is no express provision for interim bail in Sections 437 or 439 CrPC. Of course Section 437(2) hints at such a power, but not in explicit terms. Even to exercise the power there under, the Magistrate may order notice to the prosecution in which case the accused under arrest can’t avoid detention in jail. Thus, the interim bail regime becomes relevant even in post-arrest matters, leaving alone the interim bail provision in Section 438 CrPC. Life bereft of liberty is without honour and dignity.

5. Bail for Bailable offences:

According to Sec. 436 of the Criminal Procedure Code, if the alleged offense is bailable, the accused is automatically entitled to bail. This bail hearing might take place in the police station or, if the case has been transferred to a magistrate court, at the magistrate court. Bail is a legal privilege, not a favor, for crimes that are subject to bail. There is no question of any discretion in granting bail in such offenses. Bail can be requested as of right, and the police officer and the court are required by law to release someone on bail if they are willing to post money. In appropriate circumstances, such a person may also be released on his own bond. Only in cases where the accused is unable to post bail should he be detained in custody.

The Hon’ble Supreme Court in a case Rasiklal V/s Kishore Khanchand Wadhwani (AIR 2009 1341)held that: “As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him”.

6. BAIL IN CASE OF NON-BAILABLE OFFENCE

Section 437 of the code contains provisions on bail in cases of crimes that are not bailable. In a case when bail is not possible, this clause grants the Court (other than the High Court or Court of Session) the discretionary authority to release the offender on bail. It outlines situations in which bail will not be granted or in which bail must be granted with a specified condition, among other things. Only one class of police officers, namely an officer-in-charge of the Police Station, is given the authority to release on bail a person accused of a non-bailable offense under section 437 sub Section (I). Given the danger and stakes involved, the option to grant bail must be used very carefully because it is permissive rather than mandatory. A station officer should be confident that using his authority won’t jeopardize the prosecution’s ability to prove the accused is guilty before acting. The officer in charge must keep the bail bonds until they are released, either by the accused appearing in court or by an order from a competent court, and must note the reasons or exceptional grounds for releasing the accused in the case diary.

In the case of State of Rajasthan v. Balchand,(1977) 4 SCC 308. this Court opined: The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the Petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.

In the case of Prahlad Singh Bhati v. NCT, (2001) 4 SCC 280 court held that It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.

Powers of the High Court or Court of Session in granting bail :

A High Court or Court of Session may order the following under Section 439(1) of the Code of Criminal Procedure:

(a) That any person accused of an offense and in custody be released on bail, and if the offense is of the nature specified in Subsection (3) of Section 437, may impose any condition that it considers necessary for the purposes mentioned in that Subsection;

(b) That any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.

Cancellation of Bail:

The Code of Criminal Procedure clearly outlines the procedures for canceling bail and re-arresting an accused person. According to Section 437(5), a court that has released a person on bail in accordance with Sections 437(1) or (2) may, if it deems it appropriate, order that the person be arrested and committed to custody. Similar to this, Section 439 grants the High Court and the Court of Session the authority to revoke bail. The Code of Criminal Procedure’s Section 439(2) establishes clear provisions for canceling bail and re-arresting an accused person.

The power of cancellation of bail can be resorted to broadly in the following two situations:
(i) On merits of a case mainly on the ground of the order granting bail being perverse, or passed without due application of mind or in violation of any substantive or procedural law; and
(ii) On the ground of misuse of liberty after the grant of bail or other supervening circumstances.

The grounds for cancellation of bail under ss. 437(5) and 439(2) are identical, namely, bail granted under S.437(1) or (2) or s.439(1) can be cancelled where the accused

(1) misuses his liberty by indulging in similar criminal activity,

(2) interferes with the course of investigation,

(3) attempts to tamper with evidence of witnesses,

(4) threatens witnesses or indulges in similar activities which would hamper smooth investigation,

(5) attempts to flee to another country,

(6) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency,

(7) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive

Conclusion:

Under Section 2 of the Criminal Procedure Code, offenses have been divided into bailable and non-bailable categories for the purposes of providing bail. The fundamental contrast between both offenses is that although bail is automatically available for those charged with bailable offenses, bail is not automatically available for those charged with non-bailable offenses.The courts must consider a number of considerations before providing bail for non-bailable offenses. The human rights landscape is changing now. Additionally, crime rates are rising concurrently. In light of this, the Supreme Court has ruled that it is necessary to strike a balance between individual freedom and police investigative authority. There is no benefit in stating that a person’s freedom must be sacrificed for the security of the state. However, they are not necessarily always right, and they are subject to reasonable limitations.